ABSTRACT
Answer Plan The question calls for a discussion of the great school of juristic thought called ‘legal positivism’. The origins of legal positivism are usually taken to be with Bentham (1748-1832) and Austin (1790-1859), but the tradition can be dated as far back as Thomas Hobbes (1588-1679). The essence of legal positivism is not a denial of the ‘natural law’ claim that law and morality are heavily interlinked; it is rather that the identification of the law is not dependent on moral argument but that it depends on social facts alone – what Professor Raz (the leading living legal positivist) calls the ‘sources thesis’. The legal positivist will point to the function of law in providing authoritative co-ordination of human activity as justifying the necessity of law being clearly and crisply identified from social facts such as Parliamentary enactment and judicial precedent. The locus classicus of legal positivistic texts is The Concept of Law (1961, 2nd edition 1994) by Professor Hart, which sought to reinvigorate the legal positivist tradition from the defects of earlier ‘command theories’ propagated by Bentham and Austin. The main attack on legal positivism has not come from traditional natural law; indeed, Professor Finnis (author of Natural Law and Natural Rights (1980)) accepts the legal positivist ‘sources thesis’, but from the courtroom-driven vision of the American Professor, Ronald Dworkin. Dworkin argues that legal positivism cannot account for the fact that legal argument in the higher appeal courts in the USA and UK often has recourse to moral arguments to support propositions of law. Dworkin’s attack on legal positivism remains controversial, as does his denial of the central methodological claim of legal positivism that there can be descriptive legal theory only with no justificatory ambitions towards law. A skeleton argument is included.
